The Supreme Court has raised pivotal constitutional concerns regarding the newly amended Waqf Act, identifying three core areas that require scrutiny. These include the treatment of properties previously recognized as “waqf by user” by judicial verdicts, the inclusion of non-Muslim individuals on Waqf Boards and the Central Waqf Council, and a clause that automatically dismisses properties claimed by the government from being classified as waqf.
A bench led by Chief Justice Sanjiv Khanna suggested the possibility of issuing an interim order to ensure fair and balanced implementation of the law. However, the Court deferred any immediate directive, allowing both the Centre and the states a chance to respond during the next hearing scheduled for Thursday.
This judicial review follows a surge of over 70 petitions filed by lawmakers, Islamic scholars, religious bodies, and political entities, all arguing that certain provisions violate Articles 25 and 26 of the Constitution, which guarantee religious freedom and the autonomy of religious institutions.
While no formal stay has yet been ordered, the bench indicated it might pause the implementation of certain controversial clauses, particularly:
-The inclusion of non-Muslim individuals in prominent positions within Waqf institutions.
– Empowering district collectors with unilateral authority to decide waqf land disputes
– The de-notification of properties already declared as waqf by competent courts
Supreme Court’s Concerns in Detail:
1. Judicially Recognized Waqf Properties
The Court highlighted that stripping properties of waqf status that had already been acknowledged by the judiciary could undermine legal precedent.
> “Legislative acts shouldn’t overturn court rulings lightly,” the CJI observed.
The bench advised that all properties recognized as waqf—whether through long-standing use or formal declaration—should be protected from being de-notified in the future.
2. Premature Exclusion of Waqf Status During Collector Inquiries
The bench questioned the fairness of a clause that disqualifies a property from waqf consideration simply because a collector has initiated an investigation.
> “Is it fair to assume a property isn’t waqf before a final decision is made?” Chief Justice Khanna asked.
It was suggested that inquiries can continue, but the clause itself should not be applied unless approved by the Court.
3. Religious Representation on Waqf Councils
The inclusion of non-Muslims in bodies governing Islamic charitable properties was scrutinized.
> “Would Hindus allow Muslim members in temple trusts? Let’s be honest,” the bench pointed out.
The Court proposed that while ex-officio appointments could remain inclusive, the general members of waqf institutions should be Muslims to maintain religious integrity.
